Opinion
NO. 2017-CA-000179-MR
05-04-2018
DAVID MURPHY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Andrea Reed Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 14-CR-00405 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT AND SMALLWOOD, JUDGES. SMALLWOOD, JUDGE: David Murphy appeals from an Order of the Pulaski Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 Motion for Relief from Judgment. Murphy, through counsel, argues that he was denied Due Process of Law and other substantive rights under the constitutions of the United States and the Commonwealth when the Pulaski Circuit Court failed to conduct a proper Boykin colloquy. For the reasons stated below, we find no error and AFFIRM the Order on appeal.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969).
On November 6, 2014, the Pulaski County Grand Jury returned an Indictment against David Brandon Murphy on one count of Sodomy, First Degree (victim under 12 years of age) and Sexual Abuse, First Degree (victim under 12 years of age). The matter proceeded in Pulaski Circuit Court, whereupon Murphy entered a Motion to Enter Guilty Plea on June 18, 2015. The Motion, set out on Form AOC-491 and executed by Murphy, enumerated Murphy's constitutional guarantees and contained Murphy's acknowledgement that he was waiving these rights in order to enter a guilty plea. Under the terms of the agreement, Murphy would plead guilty to one count of Sodomy, First Degree (victim under 12 years of age), in exchange for the Commonwealth agreeing to dismiss the Sexual Abuse, First Degree charge. The agreement set out a recommended sentence of 20 years in prison.
On that same date, Murphy appeared in open court represented by appointed counsel. The Court undertook the plea colloquy with Murphy, and determined that he understood that he was pleading guilty and that such a plea constituted a waiver of certain constitutional rights. Murphy also stated that he was satisfied with the performance of his appointed counsel.
At sentencing, Murphy sought to withdraw his guilty plea based on his conclusion that the 20-year recommended sentence was too harsh for the crime committed. The Court denied the motion and imposed a 20-year sentence in accordance with the Commonwealth's recommendation.
On August 5, 2016, Murphy filed a pro se RCr 11.42 Motion seeking to set aside or correct the Judgment and Sentence. Murphy argued in relevant part that his trial counsel was ineffective in allowing him to enter a guilty plea "to an unconstitutional sentence." Murphy also maintained that counsel failed to investigate and challenge the statement that Murphy gave to the police. On August 15, 2016, the Commonwealth filed a responsive pleading noting that Murphy admitted committing the offense, and that the act of sodomizing a child under the age of 12 carries a minimum sentence of 20 years.
After considering the written argument, the Pulaski Circuit Court rendered an Order on September 9, 2016, denying Murphy's RCr 11.42 Motion. The Court, citing Skaggs v. Commonwealth, 885 S.W.2d 318 (Ky. App. 1994), noted that when Murphy entered a guilty plea he waived all defenses except that the indictment did not charge an offense. On the colloquy argument, the Court found that Murphy was represented by counsel, that the indictment alleged that Murphy engaged in deviate sexual intercourse with a person under the age of 12, that Murphy was advised of his constitutional rights, and that he waived them and pled guilty in open court. Upon determining that the record refuted Murphy's argument, it found that no evidentiary hearing was required. Murphy's pro se Motion for Reconsideration was denied, and this appeal followed.
Murphy, through appointed counsel, now argues that the Pulaski Circuit Court committed reversible error in denying his RCr 11.42 Motion. He first argues that the Court erred and denied him Due Process of Law when it failed to conduct a proper Boykin colloquy. After directing our attention to the case law holding that a guilty plea must be rendered freely, voluntarily and knowingly, the substance of Murphy's argument is that the Boykin colloquy was not conducted on the electronic record. Because the colloquy was not memorialized in this fashion, Murphy argues that it was necessarily inadequate and the plea could not have been made freely, voluntarily and knowingly.
Murphy raises this argument in the context of a claim under RCr 11.42 that his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.Id. at 691-92, 104 S.Ct. at 2066-67 (internal citation omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. at 2067. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
Murphy does not expressly argue that his trial counsel was ineffective in allowing Murphy to enter a guilty plea, but rather argues that "the circuit court erred in failing to conduct a proper Boykin colloquy on the record . . . ." As the Commonwealth properly notes, this argument is more akin to one which must be raised on a direct appeal rather than via RCr 11.42. Arguendo, even when characterized as a claim of ineffective assistance, we cannot conclude that counsel made errors so serious as to not be functioning as the counsel guaranteed by the Sixth Amendment, nor that such deficient performance prejudiced his defense. Strickland, supra. That is to say, Murphy fails to meet either prong of the two-part Strickland test. Murphy executed documents in open court, and with the representation of counsel, acknowledging his constitutional rights and that he was waiving them. Specifically, in the Motion to Enter Guilty Plea contained in the appellate record at page 26, Murphy expressly acknowledged his understanding that he had the right not to testify against himself, the right to a speedy trial, to confront and cross-examine witnesses, to produce evidence and witnesses in his favor, and the right to prosecute an appeal. Murphy also acknowledged that he was waiving those rights by entering a guilty plea. Further, Murphy signed the agreement which stated that,
I declare my plea of "GUILTY" is freely, knowingly, intelligently and voluntarily made; that I have been represented by counsel; that my attorney has fully explained my constitutional rights to me, as well as the charges against me and any defenses to them; and that I understand the nature of this proceeding and all matters contained in this document.
Boykin requires "an affirmative showing that [the plea] was intelligent and voluntary." Boykin, 395 U.S. at 242, 89 S.Ct. at 1711. Such a showing is found in the record in the form of Murphy's signed Motion to Enter Guilty Plea which expressly sets out his waiver of the constitutional right and his acknowledgement that the plea was freely, knowingly, intelligently and voluntarily made. Boykin sets out no requirement that the waiver and acknowledgement must be electronically recorded. Because the record contains ample evidence that Murphy's guilty plea conformed to Boykin, we find no error on this issue. For the same reason, and as this issue can be resolved by reference to the record, no hearing was required. Frasier v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
For the foregoing reasons, we AFFIRM the Order of the Pulaski Circuit Court denying Murphy's Motion for RCr. 11.42 Relief from Judgment and Sentence.
ALL CONCUR. BRIEFS FOR APPELLANT: Andrea Reed
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky